Posts Tagged ‘uspto’

According to Alyssa Bereznak of Yahoo Tech, in an article entitled The U.S. Government Has a Secret System for Stalling Patents, the United States Patent Office has a secret program called the Sensitive Application Warning System (SAWS) designed to delay and deep six certain politically sensitive patent applications. The Patent Office only admitted to the program after a FOIA request. The program goes back to at least 2006 and therefore includes the actions and knowledge of both Jon Dudas and David Kappos. Both men should be brought up on Capitol Hill for investigations. Did Kappos favor IBM patent applications or delay IBM’s competitors? Did Jon Dudas, who is not a patent attorney and is not legally or factually competent to be a patent attorney, provide favors to enhance his post public life position? If they were aware of this program, and it is hard to believe they were not, their pensions from the PTO should be revoked and they should be disbarred at a minimum.

I have actually had examiners tell me that they were not going to allow a patent application because they did not want to see the patent end up on the front page of the New York Times. I am not sure where that is in the statute, but it is illegal and unconstitutional. According to the article applications can end up in this purgatory for astonishing number of vague reasons including the application is “broad” or has “pioneering scope,” “seemingly frivolous or silly subject matter,” or those “dealing with inventions, which, if issued, would potentially generate unwanted media coverage (i.e., news, blogs, forums).”

I wrote a novel with my wife entitled Pendulum of Justice, where a plot device was abuse of this kind by the Director of the USPTO. Turns out fact is stranger than fiction.

According to the USPTO website, 8,000,000 patent issued today, August 16, 2011. The patent is entitled “Visual Prosthesis” and the inventors are Greenberg, Robert J. (Los Angeles, CA, US), Mcclure, Kelly H. (Simi Valley, CA, US), Roy, Arup (Valencia, CA, US). The patent is assigned to Second Sight Medical Products Inc. The patent took almost four years from filing, October 18, 2007, until issuance. Hopefully, this company did not need this patent to secure funding, which is common. This illustrates one of the major problems with our patent system – namely the absurd length of time it takes to get a patent issued. A patent is a property right and if it took you four years to obtain title to a car or house or stock you bought you would think you were living in a third world country.

According to the Patent Office’s press release the patent explains:

In a healthy eye, the photoreceptors (rods and cones) on the retina convert light into tiny electrochemical impulses that are sent through the optic nerve and into the brain, where they are decoded into images. If the photoreceptors no longer function correctly, the first step in this process is disrupted and the visual system cannot transform light into images, causing blindness.

The system awarded patent number 8,000,000 is designed to bypass the damaged photoreceptors altogether. A miniature video camera housed in the patient’s glasses sends information to a small computer worn by the patient where it is processed and transformed into instructions transmitted wirelessly to a receiver in an implanted stimulator. The signals are then sent to an electrode array, attached to the retina, which emits small pulses of electricity. These electrical pulses are intended to bypass the damaged photoreceptors and stimulate the retina’s remaining cells to transmit the visual information along the optic nerve to the brain.

Of course, I am sure that the patent critics will complain that this patent is an example of how the Patent Office issues bad, overly broad, patents for inventions that were created years ago. This is clearly obvious in light of modern electronics and an understanding that the brain is really just electrically signals. What is unique about converting light signals into electrical signals anyway? It really all boils down to wiggling electrons, which has been done since man first harnessed fire. I am sure that the critics will point out how this patent does not encourage innovation and is just legal title to sue and waste resources that would be better spent on engineers????????????????????????????????

According to the Wall Street Journal, “two powerful House Republicans, Rep. Hal Rogers (R., Ky.), chairman of the Appropriations Committee, and Rep. Paul Ryan (R., Wis.), chairman of the Budget Committee, called this week for changes in the legislation that would restrict the patent office’s ability to keep its own fees.” Ending fee diversion was the only positive part of the America Invents (Not) Act, HR 1249, S. 23). Representatives Rogers and Ryan should be condemned for this action. Congress is in the position of trustee of the Patent Office funds and if Congress were subject to Sarbanes Oxley Mr. Ryan & Mr. Rogers would be in jail today along with the rest of Congress. This makes the America Invents Act a complete farce. Ending fee diversion was always a little bit is not red herring as the next Congress could always just change this law.

When the government creates laws that do not apply to the government, just private citizens, this is the essences of tyranny. Rep. Ryan who is suppose to be a fiscal conservative and watching out for taxpayer dollars, is advocating the theft of inventor fees. If that is what the Tea Party and Paul Ryan consider being fiscally conservative, then it is clear that everyone in Washington believes that you have no right to the money you earn.

One of Director David Kappos’ first actions was to send out an email to all the examiners at the USPTO (U.S. Patent and Trademark Office) that rejection did not equal quality. Mr. Kappos has had almost two years to make good on the policy change. When Mr. Kappos took over the allowance rate had fallen to 39%. While this shows progress and many parts of the Patent Office have gotten the message there are still several art units where they are still operating under the “rejection equals quality” policy.

The USPTO has a data visualization center, which tracks many usefl statistics. For instance, the overall allowance rate is 62.9% from a low of around 56.4%. The overall allowance rate does not consider RCEs as a new case. For companies that can afford to fight indefinitely with the PTO this is a better measure, but for companies on a limited budget this is small consolation. Despite the rhetoric that companies file multiple patents willy-nilly, the extreme cost and length of time it takes to obtain a patent means that even the wealthiest of companies are discerning in their patent filings. As a result, an overall allowance rate near its historical average of 70-75% makes more sense.

It now takes on average 25.2 months from the date of filing a patent application until you receive an Office Action. This varies significantly from one art unit (technology) to another. In addition, Congress stole another $100M in user fees, which has caused this delay to increase. Unfortunately, our Congress is not serious about their Constitutional duty to secure the rights of inventor.

According to the Milwaukee Journal Sentinel http://www.jsonline.com/business/120673029.html, Congress, has just decided to steal another $100 million from the Patent Office, which is really stealing from US inventors. We don’t need financial reform or Sarbanes Oxley for the private sector we need if for Congress and the President. All of them would be in jail if they pulled this stunt in the private sector. The morality of the public sector has fallen to a new low. One result appear that the USPTO will have to impose a hiring freeze. This is just more evidence that Congress is not serious about its Constitutional duty of protecting the Rights of Inventors.

Why does the Trademark Office compel trademark applicants to select from the “Trademark Acceptable Identification of Goods and Services?” When I filed trademarks for my clients ten years ago there was no push to get us to select an approved statement of goods or services. We were free to correctly define what my client thought was an accurate statement of their goods or services. While the Trademark Office seemed to have some minor rules about how we stated what our goods (hereinafter goods should be read to mean goods or services) were, in general these rules seemed to be about form. I will note that even these rules appeared to be poorly defined or explained, but they were not an impediment to a correct statement of the client’s goods. Somewhere in the last ten years the Trademark Office started forcing people to select from the Acceptable Identification of Goods and Services. The problem with this policy is that this list often does not have a correct identification of the goods that my entrepreneurial clients are offering. By definition, these clients are providing a unique good that has not been offered in the market before. The result of the policy is that my clients shoehorn their trademark application into one of the acceptable statements of goods. This results in an incorrect statement of the actual goods they are providing. This policy appears arbitrary and bureaucratic to me and my clients. Can anyone provide me a reason for this policy? How does this policy improve the trademark application process? Is this policy another misguided attempt to harmonize our laws with the rest of the world?

Here is another article , “The Case for Market Based Patent Reform” pushing patent reform. This article repeats many of the myths of those people who want to weaken our patent system. For instance, it repeats the myth that there is a patent quality problem. All the studies that purport to scientifically show that there is a patent quality problem have flawed methodologies. For more information see Patent Quality Myth . What we have in this country is a small number of large companies that have made a business out of infringing (stealing) other peoples’ patents.

David Kappos, Director of the USPTO, stated at an AIPLA meeting, “We are blowing up the quality-measuring system.” Kappos’ stated that the system is “dysfunctional and backwards.” For more information see the article “No Quick End to Backlog in Sight”, at JSOnline.

Gary Locke, the U.S. Commerce Secretary, in an article in Journal Sentinel stated that the time it takes to issue patents is unacceptable. The article also points out the problem of patent office policy forcing examiners to reject applications at unprecedented rate. Secretary Locke also acknowledged that these problems have hurt the American economy. This is great news for inventors.

The only potentially bad news in the article is the statement that the patent office faces severe financial problems. This may mean higher fees in the future. Please read the full article at http://www.jsonline.com/business/54199852.html

President Obama has prioritized reducing patent application pendency times. What are your top three suggestions to achieve this goal? Here are my mine.

One: Change the way examiners are evaluated. According to my understanding, productivity count or points are a major part of an examiner’s performance review. The examiner gains points for reviewing a new case, when an applicant files a RCE (Request for Continued Examination) and if the case is allowed or abandoned, among other activities. This system encourages “churning” where an examiner will force the applicant to file a RCE in order to obtain an allowance to increase their points.

New York, NY, June 4, 2009 – A non-profit organization, American Innovators for Patent Reform (AIPR), has been formed to give a voice to American innovators – inventors, scientists, engineers, researchers, small companies, investors, patent owners and intellectual property service providers – in the ongoing debate on patent reform.